Adelaide Brighton Cement Ltd (ACN 007 870 199) v Wong [2008] FCA 496

Adelaide Brighton Cement Ltd (ACN 007 870 199) v Wong [2008] FCA 496

The consultancy agreement was a contract for the provision of services and clause 3.5(a) restricted the work in which Mr Wong could engage during the term of the contract by preventing him from undertaking or being involved in specified importation and sale of cement or cementitious products. The clause therefore fell within s 51(2)(b) of the Trade Practices Act 1974 (Cth). Because the pleaded TPA claims in paragraphs 16-28 were based on that clause, and regard could not be had to it in determining the alleged contraventions of ss 45 and 47, those claims could not succeed and were appropriate for summary judgment in favour of Adelaide Brighton Cement.

Jurisdiction
Australia
Judgment Date
16 April 2008
Procedural Posture
Application for Summary Judgment on Part of a Cross Claim / Motion for Summary Dismissal of Paragraphs 16 28 of the Cross Claim Concerning Trade Practices Act Claims
Outcome
The Court was satisfied that the Trade Practices Act claims could not succeed and that summary judgment should be entered in relation to those claims in favour of Adelaide Brighton Cement; the parties were given leave to make submissions as to the precise orders.
Legal Topics
['summary Judgment Under S 31 a of the Federal Court of Australia Act 1976 (cth)' 'trade Practices Act Claims Under Pt Iv' 'exclusion for Restrictions in Contracts for Provision of Services Under S 51(2)(b) of the Trade Practices Act 1974 (cth)' 'exclusive Dealing' 'contracts, Arrangements or Understandings Affecting Competition' 'use of Extrinsic Materials in Statutory Interpretation']
['practice and Procedure' 'competition and Consumer Law' 'statutory Interpretation' 'restraint of Trade'] ['summary Judgment Under S 31 a of the Federal Court of Australia Act 1976 (cth)' 'trade Practices Act Claims Under Pt Iv' 'exclusion for Restrictions in Contracts for Provision of Services Under S 51(2)(b) of the Trade Practices Act 1974 (cth)' 'exclusive Dealing' 'contracts, Arrangements or Understandings Affecting Competition' 'use of Extrinsic Materials in Statutory Interpretation']

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Procedural Posture

Application for Summary Judgment on Part of a Cross Claim / Motion for Summary Dismissal of Paragraphs 16 28 of the Cross Claim Concerning Trade Practices Act Claims

Legal Issues

  1. 1 ['Whether clause 3.5(a) of the consultancy agreement was a provision of a contract for the provision of services under which Mr Wong agreed to accept restrictions as to work in which he may engage within s 51(2)(b) of the Trade Practices Act 1974 (Cth).' 'Whether, if regard could not be had to clause 3.5(a), Mr Wong had no reasonable prospect of successfully prosecuting the Trade Practices Act claims pleaded in paragraphs 16-28 of the cross-claim.' 'Whether the Trade Practices Act provisions should be applied only after determining the validity of the restraint under the common law restraint of trade doctrine.' 'Whether post-enactment reports could be relied upon to identify the mischief to which s 51(2)(b) of the Trade Practices Act 1974 (Cth) was directed.']

Ratio Decidendi

The consultancy agreement was a contract for the provision of services and clause 3.5(a) restricted the work in which Mr Wong could engage during the term of the contract by preventing him from undertaking or being involved in specified importation and sale of cement or cementitious products. The clause therefore fell within s 51(2)(b) of the Trade Practices Act 1974 (Cth). Because the pleaded TPA claims in paragraphs 16-28 were based on that clause, and regard could not be had to it in determining the alleged contraventions of ss 45 and 47, those claims could not succeed and were appropriate for summary judgment in favour of Adelaide Brighton Cement.

Court Disposition

The Court was satisfied that the Trade Practices Act claims could not succeed and that summary judgment should be entered in relation to those claims in favour of Adelaide Brighton Cement; the parties were given leave to make submissions as to the precise orders.

Orders

  • ['The parties have leave to make submissions as to the appropriate orders in light of these reasons.']